Friday, February 08, 2008

The Cyclists' Bill of Rights #12: The 1st Amendment

In the two days since the release of the Cyclists' Bill of Rights, (formerly the Bicyclist Bill of Rights) discussion, discourse and debate have ensued. The title of the document, the content, the purpose, the audience, the inappropriate use of an exclamation point in the conclusion and the cavalier absence of an apostrophe in the title were all and still are topics on the table as the cycling community evaluates the document that lays down the basic rights cyclists possess when they take to the streets on a bike.

Of the 12 rights articulated in the CBR, the 12th right seems to leave the largest number of people scratching their heads and wondering how to apply it to cyclists basic right to ride. After all, it’s the free speech amendment. As much as riding a bike, solo or with a group, can be construed as a statement of sorts, the intent of the authors was to exercise the 1st Amendment right to assemble peaceably in the public place as a deterrent to law enforcement attempts to intimidate, harass or break up groups of cyclists riding together.

Cyclists' Bill of Rights #12: Cyclists have the right to peaceably assemble in the public space, as guaranteed by the 1st Amendment.”

Simply put, if on a group ride, law enforcement approaches and instructs the cyclists that the group is an illegal assembly because they have no parade permit, the response is “We’re exercising our right to assembly peaceably in the public space, in this case the streets.”

When cyclists ramp up the interaction into a 1st Amendment protected claim of the “right to assemble,” law enforcement is now bound to address the “right to assemble” issue, not the traffic issues that they usually focus on.

Law Enforcement’s appropriate response is to call for a Supervisor. (Cyclists should have already done this once the patrol officers initiated contact)

Give the instruction to disperse and the amount of time the group has to disperse.

Give instructions on the route the group should take to disperse. (Never toward the massed Law Enforcement officers. Probably in the direction the cyclists were headed before they were stopped by the police!)

Witness the MacArthur Park incident last year when the LAPD failed to clearly articulate their claim that the gathering was an illegal assembly, their failure to give the group the opportunity to leave and their failure to provide safe refuge for the media. This failure on the part of the LAPD had significant ramification for the department and resulted in policy revisions, additional training and a codification of the appropriate responses to an “illegal assembly” incident)

Witness the most recent USC incident when the streets were filled with people sitting in the street. LAPD arrived, clearly articulated that it was an illegal assembly, clearly gave a three-minute warning and a demand to disperse and then clearly gave the route for exit and offered those in the streets the opportunity to leave.

The catch-22 for law enforcement officers is this:

If they pull over a group of cyclists for an “illegal assembly” then their response is limited to addressing an illegal assembly and they must then go through the illegal assembly steps concluding with the instruction to disperse aka “keep riding!”

If they pull over a group of cyclists simply to lecture, ticket for minor violations, ticket for fictional violations, misapply “impeding traffic” and “leaving the bike lane” restrictions or any of the myriad tactics commonly applied to discourage group rides, cyclists simply claim 1st Amendment protection and ask for a supervisor which stops the hassle patrol and starts the illegal assembly process, all of which concludes with the instruction to disperse aka “keep riding!”

This may seem a bit obtuse and it may seem a bit extreme but consider the environment in which we ride, not just physically as we dodge potholes, opening doors and other obstacles innumerable but also the social and political climate that still finds it shocking when two or more cyclists simply ride in the same direction at the same time and at the same speed.

Cyclists are expected to share the lane with buses, trucks, SUV’s, minivans, motorhomes, automobiles and motorcycles. But when a cyclist shares the lane with another cyclist, the typical response is “you’re impeding traffic!”

Last year two cyclists were riding on PCH along a stretch that had no shoulder. They were riding in tandem in the outside lane. The cyclists were hit from behind by a catering truck and killed instantly. The driver explained to deputies that he did not step hard on the brakes because his passenger was standing behind him and cooking hot food.

Most disconcerting about the incident was the significant discussion spent on the fact that the cyclists were riding in the lane. Apparently the cyclists didn’t know each other but they either met up and were riding in sync (a common habit that occurs throughout the city when one cyclist comes across another cyclist going the same direction) or one was passing the other within the lane. Nevertheless, it’s amazing that the community’s shock at the deaths was tempered by the repeated observation that “they shouldn’t have been riding in tandem like that.”

Just this past week, four cyclists riding 2 by 2 in the #2 lane of Virgil, on the approach to a red light at Melrose, signaled and took control of the #1 lane and then continued into the left turn lane. The car in the #1 lane continued to accelerate toward the red light, (distracted, drunk, we never found out) and had to stop abruptly when he found himself behind cyclists executing a vehicular left turn on the approach to a red light.

An LAPD Supervising Sgt. Assigned to the Rampart Division witnessed this and promptly pulled over the cyclists because they were “impeding traffic and it was unsafe.” (All on the approach to a red light? The motorist accelerating at the red was of no interest to him. The reason it was unsafe to the Sgt. was based on the fact that cyclists are smaller and more vulnerable than automobiles, therefore cycling on the streets is unsafe.)

This incident included lectures on everything from helmets, illumination, CVC requirements of cyclists and even group rides! Three additional squad cars arrived backed up by a helicopter. The back-up officers, none of whom witnessed the incident, still felt more than comfortable explaining what’s wrong with group rides. (Riding as a group with no permit is wrong but Rampart allows it as long as there are no problems.)

The stories of inequities on the street abound but the bottom line is that the police still get calls from the community consisting of “There is a large number of cyclists all riding on the street and in the same direction!” Instead of dismissing these calls, law enforcement jumps.

“Tactical Alert! There are cyclists on the street, all riding in the same direction. Let’s stop them, lecture them on safety, threaten them with multiple tickets for pedal reflectors and bicycle licenses and then demonstrate how cool we are by only ticketing the ones we really don’t like. All available officers! Get the helicopter!”

(It gets worse physically. Last year a CHP officer chased the Montrose riders on Mulholland because a motorist called in the group ride. The cyclists were flying. The CHP officer used his car to cut off the cyclists while at speed, forcing them to a stop and causing some to crash including the leader who hit the CHP car.)

(It gets worse legally. Last year Pasadena attempted to pass a law restricting the rights of cyclists on the streets on Pasadena only to encounter CVC section 21 which restricts a municipality from regulating bicycling on non-freeway roads.)

Imagine if pedestrians and motorists were treated the same way.

“Officer, there is a large number of pedestrians on Colorado Blvd. They have filled the sidewalks, sometimes spilling onto the street. They mass at the intersections, making it difficult to get through the crowd. It must be organized because they are all carrying shopping bags. I saw a flyer and it seems that the merchants have organized an event. A shopping event. I think they call it a “Sale.” The pedestrians don’t seem to actually know each other but they are definitely going into the same stores so it must be organized. Do something!”

or,

“Officer, there are a large number of motorists massing on Hollywood Blvd. They do this every day at 5 pm. They fill the streets, they honk, they rev their engines and then they race through the green light and then they quickly stop and wait behind the car in front of them and then they honk and rev and then they race onto the 101 Freeway ramp where they wait and rev and honk. They do this everyday at 5pm. They’re obviously organized! They must be stopped! Can’t you find their leader? I see the same cars, I see the same drivers. Do something!”

Absurd? Yes! That’s the point.

It’s not only absurd to hassle or restrict a group of people based on their mode of transportation, it’s a violation of our basic civil rights and it’s unacceptable.

“While riding a bike for transportation is a tribute to many of the basic ideas upon which this country was founded - common sense, self-reliance, and closeness with the land, to name a few - it is also, in many ways, a slap in the face to contemporary American culture.” Robert Hurst in “The Art of Urban Cycling”

"I think people are entitled to march without a permit. When you have a few hundred thousand people on the street you have permission." -- Tom Hayden

Once a decision is made that an assembly is unlawful, law enforcement present at the scene must then announce to the crowd that the crowd must disperse. According to the LAPD Emergency Operations Guide, Volume 5, “Prior to dispersing an unlawful assembly, officers shall give the following Dispersal Order to those participating in the unlawful assembly. The Dispersal Order shall be read verbatim:”

"I am (rank and officer’s name), a police officer to the City of Los Angeles. I hereby declare this to be an unlawful assembly and, in the name of the people of the State of California, command all those assembled at (give specific location) to immediately disperse, which means to break up this assembly. If you do not do so, you may be arrested or subject to other police action.

Other police action may include the use of less lethal munitions, which could cause significant risk of serious injury to those who remain. Section 409 of the Penal Code prohibits remaining present at an unlawful assembly. If you remain in the area which was just described, regardless of your purpose in remaining, you will be in violation of Section 409. The following routes of dispersal are available: (give the most convenient route(s) of dispersal) You have __ minutes (give a reasonable amount of time – take into consideration the number of participants, location of the event and number of exit routes) to disperse."

A proper dispersal is necessary to ensure that all present are aware of the fact they are to leave the area; that they know what routes to take. Without such an order, any arrest for unlawful assembly will be legally insufficient.